Going Backwards: Rollback of Carbon Pollution Regulations

Setting federal clean air policy aside, there are modest victories to celebrate for the United States clean energy transition. In 2018, we will set a new record for coal power plant retirements, strongly assisted by low natural gas prices and competition in wholesale energy markets. As a result of state and corporate leadership, facilitated by a remarkable decline in development costs for renewable energy technologies, the U.S. clean energy industry is humming. Unfortunately, even with these steps forward, according to the U.S. Energy Information Administration, 2018 will also see modest growth in U.S. CO2 emissions, reversing a decade of decline. This is the exact opposite result of what is needed in light of the bleak outlook conveyed by 13 federal agencies in the recent Fourth National Climate Assessment warning that climate change could chop off as much as 10 percent of U.S. economic output by the end of the century, more than double the impact of the recent Great Recession. As noted by The New York Timesand other media, there is a “bizarre contrast” between the results of this scientific assessment and the Trump administration’s energy and climate policy. Seemingly at the worst possible time, as renewable energy technologies are becoming increasingly cost-effective, the federal government has elected to change the course of the conversation toward one that promotes a coordinated policy of fossil fuel promotion and environmental deregulation, in some instances promoting policy that will not simply stall recent progress, but seek to promote growth in CO2 and other harmful emissions. This article discusses the rollback of three critical clean energy standards by the Trump administration and how the reversal of their implementation is in stark contrast to the scientific guidance of 13 federal agencies in the recent National Climate Assessment.

Rollback of the Methane Rule

In September 2018, the Environmental Protection Agency (EPA) proposed to loosen methane regulations over the oil and gas industry that would have otherwise harnessed $30 million dollars of wasted energy. The amendments propose to remove regulations in monitoring and capturing fugitive methane emissions from oil and gas facilities, one of the major objectives of the 2016 updates to the New Source Performance Standards for the Oil and Ga Industry. A network of oil and gas pipelines crisscross the nation, distributing both raw and final product oil and gas to refineries and terminals. Over time, natural gas transmission pipelines degrade and eventually leak, releasing methane into the atmosphere. Methane is a greenhouse gas with a global warming potential (GWP) over 28 times that of CO2(CO2 has a GWP of 1). The 2016 rules served three purposes: the first to minimize natural gas from escaping oil and gas sites; the second to capture a precious resource used to generate energy; and finally, to minimize release of hazardous pollutants associated with natural gas extraction (xylene, toluene, ethylbenzene). Rolling back the rule would decrease the frequency of leak inspections, remove any requirements using control or capture technologies, and allow the trend to continued use of degrading pipeline infrastructure. Although the EPA’s proposed rollback would save the oil and gas industry $75 million a year in compliance costs, the EPA is acting against oil and gas lobbying groups such as the American Petroleum Institute (API) who favor the 2016 rules. This policy ignores the challenges posed by the federal government’s own climate assessment.

On Sept. 18, 2018, the Bureau of Land Management (BLM) finalized a similar rule relaxing methane emissions from oil and gas operators on federal lands. On the same day California and New Mexico attorneys general filed a lawsuit challenging the rule. In a separate lawsuit, the Environmental Defense Fund, Sierra Club, and others brought a lawsuit fighting the rule. While the EPA comment period on the methane rollback standards just ended, the EPA should expect similar challenges once the rule is finalized.

Rollback of Auto Emissions Standards

In 2012, the Obama administration forged a significant climate policy agreement with the auto industry and the State of California, calling for tightened standards via the Corporate Average Fuel Economy (CAFE) program to double fuel economy standards to 54 mpg by 2025. However, in August 2018, the EPA and the National Highway Traffic Safety Administration, with little scientific or technical support, proposed freezing the standards at the 2020 level. Furthermore, they also seek to prevent California (along with 13 other states adopting California’s standards) from adopting more stringent fuel economy standards than the federal government. Controlling transportation emissions is a critical component of state and federal climate policy. Without the benefits from the increased standards, more costly and disruptive requirements will be required of other sectors in order for us to make progress on climate goals and avoid the worst predictions of the National Climate Assessment.

As a sign of the legal fight that is brewing, a coalition of 17 states led by California sued the EPA in May 2018 seeking judicial review of the EPA’s notice of withdrawal of the Obama administration’s midterm evaluation of the new standards, demonstrating that there will be a protracted legal fight over the final action. The auto industry, which originally encouraged the Trump administration’s rollback, is even signaling that the EPA’s action went too far in freezing the standards.

Rollback of the Clean Power Plan

In August 2018, the EPA proposed the Affordable Clean Energy (ACE) rule to replace the 2015 Clean Power Plan (CPP), which aimed to reduce greenhouse gas (GHG) emissions from existing coal-fired electric utility generating units and power plants across the country. Unfortunately, the proposed rule and subsequent compliance would do just the opposite. According to comments from environmental and energy regulators from 14 states that oppose the rule, the “EPA’s own analysis shows that the proposed approach has the potential to increaseCO2 and other pollutant emissions, worsen air quality, cause and exacerbate illnesses, and even contribute to deaths.” These state regulators warned that the “EPA’s own analysis concludes that the Proposed Rule would result in an increased number of premature deaths relative to the CPP—up to 1,400 annually beginning in 2030.”

The ACE rule comment period closed on Oct. 31, 2018, and the EPA is reviewing those comments. The rule may be finalized in early 2019 and, given the history of litigation over the Clean Power Plan, we can expect the final rule to be vigorously challenged by the states and environmental community. In the meantime, the Obama Clean Power Plan remains subject to a stay in the D.C. Circuit Court.

There is no doubt that rollback of each of these rules will face stiff opposition from the states and environmental advocacy organizations in the courts. While the Trump administration’s actions seem coordinated in their naked intent to reverse climate policy initiatives of the Obama administration, they similarly seem openly rushed and based on faulty analysis. In fact, the biggest hope for delaying and eventually reversing these rollbacks is found in the Trump administration’s own analysis, which at best only vaguely masks the disastrous impact that climate change likely will have on the environment and society. State and other public interest litigators, in addition to the law, have the National Climate Assessment and the Trump administration’s own projections as powerful facts weighing against these disastrous rollbacks of carbon pollution regulations. While the litigation will be lengthy and contentious, at least partly achieving the Trump administration’s goal to delay climate action, ultimately, we should watch for the courts to hold the EPA to a significantly higher standard than the administration’s rushed and overtly political regulatory rollback hopes to achieve.

Charles Kuo JD’20 is a second-year student at Vermont Law School. His area of focus is in environmental law and international environmental law. Charles received his bachelor’s degree in chemistry from York University and a master’s degree in civil engineering from Texas A&M-College Station. Charles is currently working with Vermont Law School’s U.S.-Asia Partnerships for Environmental Law as a research assistant studying comparative air pollution enforcement tools between the U.S. and China. Last summer, Charles worked as a summer associate at Beveridge and Diamond. He worked alongside experienced lawyers over a myriad of environmental matters including CERCLA, Clean Air Act, and pharmaceutical waste.

Professor Kevin B. Jones is the director of the Institute for Energy and the Environment at Vermont Law School. At the IEE he leads the Smart Grid Project and the Energy Clinic, and is co-author of “A Smarter, Greener Grid: Forging Environmental Progress through Smart Energy Policies and Technologies” (Praeger).
phone: 802-831-1054
email: kbjones@vermontlaw.edu